29 May What is The Parental Kidnapping Prevention Act of 1980 (PKPA)?
The Parental Kidnapping Prevention Act (PKPA) is an enactment that was established on December 28, 1980, under Title 28 of the United States Code § 1738A. This federal United States law was developed to meet national standards for the assertion of child custody jurisdiction. The purpose of the enactment was to offer resolution and discourage interstate court battles, prevent interstate kidnappings, and promote collaboration between states about interstate custody cases. In addition, as part of the Violence Against Women Act of 2000, the PKPA’s description of “emergency jurisdiction” was widened to cover domestic violence cases constantly with new state jurisdictional regulations.
Abduction by parents includes the retention, concealment, taking, or retention of a child by his or her parent, their agent, or another family member. Especially when in violation of the visitation or custody rights of another family member or parent. Due to the harmful effects on children, parental kidnapping has been categorized as a type of child abuse. For these reasons, Congress passed civil and criminal laws to address parental kidnapping and interstate and international child custody and visitation arguments.
How it Works
The PKPA is a full faith and credit law. The act conveys to courts when to enforce and honor custody decisions issued by courts in other tribes or states. Since it is a federal law, it outplays state law when there is a battle between the two types. The PKPA does not dictate to courts when they should implement jurisdiction over a fresh custody matter. That is only determined by tribal or state jurisdictional laws. For example, the Uniform Child Custody Jurisdiction and Enforcement Act, or the Uniform Child Custody Jurisdiction Act. However, Courts must follow the PKPA’s commands when:
- it is being determined whether to enforce a custody determination made by a court of another state or tribe;
- they are deciding whether to implement jurisdiction despite an existing custody proceeding that is already pending in another jurisdiction, and
- they are asked to adjust an existing visitation or custody order from another jurisdiction.
Provisions Related to Domestic Violence
The PKPA puts into play four methods in which courts can implement authority: significant connection, emergency, home state, and more suitable forum. The PKPA gives the minor child’s home state favored jurisdiction and forbids a court from implementing jurisdiction if a lawful custody proceeding is already pending in any another state.
The location that is considered to be the minor child’s home state and will have authority, is the location where the minor child has resided with either a parent or a legal guardian acting as the parent for six months prior to when the petition for custody was filed.
A state can implement significant connection jurisdiction when there is no home state determined. The parent and the child must have a significant connection to the state, and there must be substantial evidence of the relation to the state in terms of the minor child’s personal relationships, care, training, and protection.
In cases of emergency, a state can implement emergency jurisdiction only when the child is physically present in the state, the child has been abandoned, or it is necessary because the child is in need of immediate protection. If the parent or sibling of the child has been mistreated or threatened, the emergency jurisdiction implementation can be exercised. In cases where a person has been a victim of domestic violence, and they are forced to flee across state lines with the children, the refuge state may implement emergency jurisdiction. The children do not have to be physically abused or threatened for this rule to apply. So long as the parent or sibling was threatened or abused, the regulation will be applicable.
More Appropriate Forum
This kind of jurisdiction is when no other state has been determined to be the home state, emergency jurisdiction, significant connection, or continuing.
Modifying Visitation and Custody Orders
The PKPA provides continuing jurisdiction to the state that dispensed the original custody implementation consistent with the PKPA. This state holds jurisdiction so long as it devises jurisdiction under the state law and at minimum one parent or the child continues to reside there.
A court can formulate a modification of a visitation or custody order only when it has jurisdiction to do so, or when the original state’s court no longer has jurisdiction.
Full Faith and Credit
Full faith and credit are required when all relevant parties have had the opportunity to be heard and have received notice. Under the Violence Against Women Act summary, ex parte orders are not entitled to full credit and faith in matters where ex parte custody orders are being sought in another jurisdiction.
28 U.S. Code § 1738A – Full faith and credit given to child custody determinations
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.
(b) As used in this section, the term—
(1) “child” means a person under the age of eighteen;
(2) “contestant” means a person, including a parent or grandparent, who claims a right to custody or visitation of a child;
(3) “custody determination” means a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications;
(4) “home State” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
(5) “modification” and “modify” refer to a custody or visitation determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody or visitation determination concerning the same child, whether made by the same court or not;
(6) “person acting as a parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
(7) “physical custody” means actual possession and control of a child;
(8) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States; and
(9) “visitation determination” means a judgment, decree, or other order of a court providing for the visitation of a child and includes permanent and temporary orders and initial orders and modifications.
(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because
(I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and
(II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and
(i) the child has been abandoned, or
(ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;
(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and
(ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(e) Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.
(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.
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